¶1filed a dissenting opinion, in which KELLER, P.J., and MEYERS, J., joined.
¶2The Court’s opinion holds that the requirement for preservation of error that is a prerequisite for appeal is not a prerequi*912site for a motion for new trial. Therefore, although there is no preservation issue for the court of appeals to consider on remand, it should consider “the merits of the trial judge’s ruling,” three aspects of which are mentioned. (Ante, at 911).
¶3But that’s not what this case is about. Those “merits” of the prosecutor’s argument are not why the new trial was granted. As the Court’s opinion clearly says (ante, at 905, quoting the trial court’s ruling), it granted the new trial only “on the ground that a bench conference was not recorded during the trial.”
¶4The only question before us is whether that was a correct reason to grant a new trial. It wasn’t, as we held in another case after this trial was over. The trial court had no discretion to be wrong about the law, although his error was understandable since the courts of appeals were in conflict at the time and the court tried to follow the (incorrect) line of decisions of the “home” court of appeals.
¶5I respectfully dissent.
¶6. See Tanguma v. State, 47 S.W.3d 663 (Tex. App.-Corpus Christi 2000, pet. ref'd) (holding that a court reporter’s failure to record a bench conference during trial was error if the parties had not agreed that such a conference not be recorded, and that a party was not required to object to the failure). After the State gave notice of appeal in this case, we resolved a split among the courts of appeals by holding that a party must object to such a failure in order to complain on appeal.
¶7. See Valle v. State, 109 S.W.3d 500, 508-09 (Tex. Cr.App.2003).